Jersey Unreported Judgments

[2003]JRC169

royal court

(Samedi Division)

 

1^st October 2003

 

 

 

 

 

The Plaintiff and the Defendant were neighbours.  The Defendant undertook building work at his house.  To do that he erected a 40' scaffolding with a roof over it erected virtually on the Plaintiff's Southern Boundary.  Scaffolding of this size was necessary as the Defendant intended to raise his roof by 11' and put in 3 new bedrooms.  Beams from the scaffolding overhung the Plaintiff's property.

The Plaintiff was not a well person having had a serious illness from which she returned as the scaffolding was being erected.  She had the reputation of being a difficult neighbour and it was clear that the parties did not get on well.

The Defendant had not approached her before erecting the scaffolding.

While the work was in progress, the Plaintiff complained about excessive noise and unsocial working hours, first to Planning and Environment, then to her lawyer who wrote to the Defendant.  The Defendant continued his work and made no contact directly with the Plaintiff although he replied to her lawyer.  Subsequently she sought to obtain an injunction, to remove the scaffolding, which was refused because the Defendant's roof was off, but reserved her right to claim for damages.

Held, there was no balancing of rights with the trespass, and the Plaintiff was entitled, even though no loss had been sustained to damages which the Court could award even when the Plaintiff was disentitled to an injunction.  Damages were to be assessed as being such a sum of money as might reasonably be demanded by the Plaintiff as a quid pro quo for the infringement.

Under this heading the Court awarded the Plaintiff £500.

As to nuisance the Court held (per Key (née Shaw) v Regal (1962) JJ189 that

1)         The occupier of land is entitled to the quiet and unimpeded enjoyment of that land.

2)         The owner of land is entitled to do as he pleases with that land.

Nuisance, to be proved, must be substantial Clerk and Lindsell on Torts para 18-10) "to any person occupying the Plaintiff's premises, irrespective of his position in life, age or state of health".

Although the Plaintiff had returned home a sick woman and was clearly nervous and highly strung, possibly in consequence of this, nonetheless the Court found that the Defendant had in the circumstances crossed the border of what was reasonable, and awarded damages of £1,500 on this head.

 

 

 

 

Advocate R.G.S. Fielding for the Plaintiff.

Advocate P.M. Livingstone for the Defendant

 

 

judgment

the COMMISSIONER:

1.        This is an action for trespass and nuisance  The Plaintiff, a retired civil servant now aged 62, lived, in the summer of 2001, at a house called La Fougère, off Belvedere Hill in St. Saviour and to the east of the private lane running off Belvedere Hill which serves it and several adjoining properties, including that to the south of her bungalow, known as Moonglades, tenanted from a Miss Colebrook by Mrs. Le Gac the mother of the defendant, and to the south of Mrs Cornick's garden and to the east of Moonglades, the property "Rowanne" owned and occupied by Mr Le Gac the Defendant.

2.        The Plaintiff lived at La Fougère from May 1978 until she sold it in 2002, whilst the Defendant has lived at Rowanne for some 13 years more recently with his partner Miss Lynda Le Couteur.  He is a carpenter/builder, employed by a local firm.  Mrs Le Gac has been at Moonglades since June 2000.

3.        The action which comes before the Court is concerned with the effect of building work undertaken by the Defendant, but in order to give the Court a fuller picture, a good deal of background evidence was put before us.

4.        The lane giving access to all 3 of the properties mentioned above lies to the west of their various entrances, is narrow, and access can be made difficult if cars are parked in it.  This applies particularly to the Plaintiff.

5.        There would seem to have been constant problems and difficulties with parking and at some point in the 1980's the situation had become so bad that the Plaintiff had taken out an injunction against a family living nearby.  In this she was supported by Mrs Griffiths (q.v.) who lived further up the lane.

6.        Although they have been neighbours for a number of years, the Plaintiff stated that the paths of the Defendant and herself never crossed, and that up to May 2000, she would have seen the Defendant perhaps 10 times in 10 years; a statement confirmed by the Defendant who stated that up to the summer of 2000 there was little contact, as he kept his distance.  The Plaintiff he said would approach him, rather than the other way round.

7.        The situation changed in the summer of 2000 when the Defendant's mother moved in to "Moonglades", and a parking space was created for her in what was formerly a garden, between the house and the lane.

8.        According to the Plaintiff, one Sunday afternoon, without notice the Defendant knocked down the wall to make a parking space for his mother.

9.        In the Plaintiff's view it affected her privacy and it is clear that she was upset about it.

10.      The Defendant 's explanation was simple.  The Plaintiff when the work started was standing by the wall listening.  He told her that he was making a parking space, that he thought it was in her interest and she was abusive and argumentative.  This attitude continued during the work after the weekend.

11.      Further, when the scalpings arrived, the Plaintiff had parked her car so that the lorry could not reverse into the parking space; and would not answer her door to move it.  His evidence was corroborated by Mrs Le Gac, who clearly disliked her neighbour, who she claimed had been offensive to her when she was helping with the scalpings.

12.      At about, or probably shortly before this incident, the Plaintiff was advised by a neighbour who had seen it in the Jersey Evening Post, that the Defendant had put in a planning application for Rowanne.

13.      On discovering this the Plaintiff went to the Planning Office, and found that the Defendant was proposing to extend his roof.

14.      She approached the Defendant and asked him why he had not told her about it.  Her account was that he told her that it would not affect her, and would be a new roof and bedroom, which would not be visible to her and would not overlook her as it would have roof lights.

15.      No starting date was, she said, given to her, nor any information as to how it was to be carried out.  As to how it was to be carried out, she said that she never gave it a thought.  Even if she had known it was an extra 3 rooms, she would not, she thought have gone back to planning.  As to noise, she never, she said gave that a thought; indeed she thought it would appear by magic. 

16.      As a result, however, of the car park extension to Moonglades and the proposed extension to Rowanne the Plaintiff decided she would move although she did nothing, she said, about it until January 2001.

17.      Before that, however, there were yet further difficulties over parking leading to a letter addressed to the Defendant, dated 20^th October 2000 followed by solicitor's letters.

18.      This letter, of the 20^th October, 2000, was in the view of the Court, written in strong terms.  The Plaintiff's view was that the Defendant was well aware of the action with the then occupants of the Coach House (at the foot of the lane) as he also was affected.  In her view the row blew over, and she maintained that her letter invited discussion.  Instead of that she complained that she had been abused verbally by the Defendant.

19.      The letter ends, after various complaints, as follows:

"I trust that, having considered the contents of this letter, you will co-operate in ensuring that I am not disturbed in the peaceful enjoyment of my property.

I am sending a copy of this letter to my lawyers, to be kept on file.

Should you wish to discuss any matter contained in this letter, I will be happy to do so as, little as I know you, I do not believe you would have been party to the malicious damage to my car".

20.      The Defendant in examination in chief was asked whether he had taken up the offer to discuss to which he replied that he had not.  This then is the rather unhappy background and brings the Court to the work itself.

21.      In April, 2001, the Plaintiff had taken a holiday out of the Island for some 3 weeks hoping, it would seem, for a sale of her house.  She returned to the Island and a few days later, suffered a collapsed lung.  Quite clearly there was some sort of emergency as her car remained at the Golf club where she had been taken ill.

22.      She was in Hospital she told the Court for some 3 weeks, and had been heavily sedated with morphine.  She thought she had asked Mrs Anderson (q.v.) to tell her neighbour Mr Flynn where she was.

23.      She returned home on May 21^st on her discharge having been advised by her Doctors to have peace and quiet and to relax: and although she could have gone to Overdale, she preferred to return home.

24.      She was driven back by Mrs Donaldson to find a large scaffolding lorry in the middle of the driveway.  This was confirmed by Mrs Donaldson who said that, to their dismay, they had found this huge articulated lorry there, in such a position that they could neither move nor park: and when the scaffolders were asked to move, they said they could not drive it; so she ushered the Plaintiff quickly into her house.

25.      The Defendant agreed that he had not told the Plaintiff when he was to start, nor give any real explanation of what he was going to do.  He did though tell Mr Flynn when the latter had told him that he did not know where the Plaintiff was, that he hoped she would not cause him too much trouble.

26.      His explanation was that before the problem with the parking space at Moonglades, when the Plaintiff had come to him and said that she had heard that he had an application for a roof extension, he had replied that he was changing the pitch, that indeed nothing would overlook her and that there would be roof lights, but that the conversation was cut short when the Plaintiff saw someone in the turning point opposite her house and ran off.

27.      In cross examination, he agreed that he had not told the Plaintiff when he would start.

28.      He said only that he had, as she had said, mentioned the work the previous year when she had been in a hurry but that he did not then know when he would start.

29.      Asked if he had told her when the intention had been formed, he replied that he had not because the year before she had kind of burnt her bridges.

30.      He had not approached her after the letter of the 20^th October, 2000.  The reason he gave was that it (the letter) was mainly about parking.  The Plaintiff was "just a neighbour" and although he would speak if she saw him, he never went to her.  He found her, he said, forceful and aggressive.

31.      Asked whether he thought that if he ignored her, she would go away, he replied that those were indeed his feelings, and that if he had any complaints from the Plaintiff he would indeed ignore them.

32.      The Plaintiff stated that when she returned home, she remained in the house for perhaps a couple of days; and that when she went out she saw parts of the scaffold projecting high up and lower down over the property.  It is conceded by the Defendant that part of his scaffolding did indeed overhang the Plaintiff's property.

33.      The Court has been shown pictures of the scaffolding, which the Defendant agreed was some 40 ft in height, and was clearly very close to the boundary line, over which projected a series of aluminium structural beams which took the weight of the roof erected on the scaffolding and which extended some 5 ft over the boundary.

34.      It was necessary for the scaffold to be so high as the Plaintiff had increased the height of his roof by 11 ft, and had to have 4 ft clear above this in order to work safely.

35.      The scaffold would not have been, he agreed, much more than 10 ft from the Plaintiff's bedroom on the south-eastern corner of her house.

36.      He had, he said told the scaffolders not to encroach on the Defendant's property because of her previous behaviour.  The contractor wanted to put a brace (or buttress) on her property, but was told that the Defendant wanted nothing touching her property.

37.      If he had gone to see the Plaintiff, he could guarantee he said that had he put any thought of trespass into her head she would have objected.  He did not, however, go and see whether this was indeed the case.

38.      The Defendant maintained that he did not know that a projection into air space over the Plaintiff's property was trespass but thought that it would only be so if the scaffolding or part of it (e.g. a buttress) was erected physically on the Plaintiff's property.

39.      However, he did reply that although he had told the scaffolder on no account to encroach on the Plaintiff's property (because of her previous behaviour), that nonetheless if she complained he would move them; and that as she did not approach him he thought that there was no issue regarding the beams, a statement which sits rather oddly with his assertion that he thought that to encroach, the scaffolding had to be placed on rather than over the Plaintiff's property.

40.      The Court heard evidence from Mr F Fitzpatrick a partner in Brocken and Fitzpatrick, the contracting firm which erected the scaffolding.  The scaffold would he said take 8 - 10 working days to put up, and was up for a surprisingly short period.  There was a flat fee for 12 weeks, and then a recurring hire charge.

41.      The beams overhung the scaffold at both ends because, although beams came in lengths of 13' and 27' he had only 27' beams available for this job and they needed to balance out at either end.

42.      He had never, in 32 years, he said, had complaints about the use of airspace.  He confirmed that the Defendant had told him not to go into the next door garden to put down a buttress; and confirmed also that the Defendant had, later in the summer, asked him to cut the beams overhanging the garden, which he refused to do as the beams were expensive.

43.      In answer to further questions, he stated that he would not have erected the scaffold in the way he did in the winter; and that if the job had run over he would have needed either to have built a buttress at both ends or to have taken the scaffolding down, as it would be dangerous to leave it as it was after the end of September.

44.      Quite apart therefore, from any immediate financial consequences of an overrun, the Defendant's interest was, quite clearly, to proceed with the work to ensure that it was - insofar as it needed a scaffold - complete by this date.

45.      The Plaintiff complained that the Defendant worked unreasonably long hours and made a great deal of noise; that for some 3 to 4 weeks he worked from early in the morning until late at night, including Saturdays and Sundays; and that when he went back to his day job he worked in the evenings up to 10 p.m. and later.

46.      She described the noise as hammering and drilling, going on into the evening, although it got more subdued near bedtime.  She complained also that he worked by floodlighting.  We should say at once however that there was no evidence put before us which would permit us to come to such a conclusion.

47.      As a result, she was a constant nervous wreck and in tears every day.

48.      Her nervous state was exemplified, she said, in the incident mentioned in a letter, infra from the Defendant to her lawyers in July.

49.      She stated that the hammering and drilling had got to her so that at about 9.45 p.m. she went out that night until 4 or 5 am; and that when she returned she contented herself with taking a shovel and beating on the wall to wake her neighbours up.

50.      She became she said, a nervous wreck and on some days could have committed murder, not unlike the morning on which she had banged the shovel.

51.      It was put to her in cross examination that she was over-reacting, to which she replied that, of course, she was prepared to tolerate a certain amount of inconvenience, but that surely the Defendant could have let her know in advance what was happening when he was, for example, using his angle grinder.

52.      The Plaintiff called several witnesses who gave evidence as to her character, state of health and as to the conditions about which she is complaining, following her return on May 21.  First, she called Mrs S.J. Lea who had known the Plaintiff for some 12 years. She was a golfing friend of the Plaintiff who she described as a friend, but fiery at times.

53.      She had visited the Plaintiff twice after she had returned home.  The Plaintiff's health was poor.  On the first occasion in the afternoon, they went into the garden and tried to have a conversation, even though it was very noisy.

54.      Had the noise she experienced been a daily occurrence she would certainly have complained.  On her second visit, one morning she had been there for 1½ hours and there was constant drilling, hammering and banging, and even inside with the windows shut there was still constant noise which was audible.

55.      Mrs Lea conceded that she had no experience in the building trade; and that Mr Smith to whose evidence the Court will come later was more accustomed to hearing building work, but that she regarded the question of whether it was intrusive as being more a matter for the household.

56.      She added that, perhaps some 20 yards from her home someone was putting a new roof on, and she was certainly suffering nothing like the disturbance which the Plaintiff had suffered when she had visited her.

57.      Mrs Donaldson, who had known the Plaintiff for some 15 years, described her as a loyal friend, good, honest and generous.  She stated that the Plaintiff was very stressed during the time of the building work.

58.      She added that the house had been on the market before the Plaintiff went on holiday to Scotland (which preceded her return and collapse in May) and that she had put in double glazing.

59.      Mrs D.M. Garvin stated that she had known the Plaintiff some 40 years ago, and had got to know her again some 7 years ago when she, the witness had returned to the Island.  She described the Plaintiff as forthright and scrupulously honest; and added that anything she told her she would believe.

60.      The Plaintiff's health on her return from hospital was clearly poor.  The 1^st week she called on her nearly every evening and thereafter for an hour or so some days and some evenings for 2 or 3 weeks, and thereafter perhaps twice per week and most Saturdays (now that the Plaintiff could no longer play golf) and perhaps a couple of Sundays.

61.      She described the noise as atrocious, going on into the evening until she left.  It was trying for her and must have ruined the Plaintiff's summer.  To get some peace it was necessary to close the windows.  The Plaintiff was extremely uncomfortable and disturbed and on some Saturdays she would take the Plaintiff back to her house.  It certainly affected the Plaintiff's health.

62.      It was put to her that she was over-egging the evidence, to which her reply was that she had been sworn in, and was telling the truth as she knew it.  Mrs A. Anderson stated that she had known the Plaintiff for some 20 years; and that the Plaintiff in her view tried to live a peaceful life, and was a private person, keeping herself pretty much to herself.

63.      She too had visited the Plaintiff at La Fougère quite frequently that summer, and on at least one occasion, had overlapped with Mrs Garvin.  She too had found the work next door noisy and continuing sometimes in the evenings.  The drill she said was loud enough to hear inside the house even with the doors and windows shut.  The noise, she added, stressed the Plaintiff considerably; and she herself could not have enjoyed living at La Fougère that summer.

64.      Last the Plaintiff called Deputy T.J. Le Main who had, he said, known her for perhaps 25 years.  She had been a very good and efficient committee Clerk, was well liked and respected.  He could not recall her getting excited or making, as it were, a meal of things.  He had been contacted frequently in the summer of 2001 by the Plaintiff who he said was distraught and not at all like the lady he had known sometime previously.

65.      He was surprised ("gob smacked") when he first saw the scaffolding, and the noise when he first went there was quite unreasonable.  He visited several times, and on occasions went past in the early evening, on his way to see his mother.  He did not hear noise every time, but did on 2 occasions, when, out of normal hours, he heard an enormous amount of noise and banging.  He had gone so far as to write about it, quite late, on 23^rd August.

66.      He had never spoken to the Defendant though he had had, he agreed, a heated argument with Miss Le Couteur, the Defendant's partner, over the telephone.  Although there were questions put to him regarding an interview with C.T.V., his main evidence was not challenged; and finally, in cross examination he reiterated his view that if it had been him he would have sought an injunction because the noise was so unreasonable.

67.      The view of the Defendant, his partner, Miss Le Couteur and his mother was quite different to that of the Plaintiff.  The Defendant had decided to extend his house and had got building permission in January 2001.

68.      He had had no conversation with the Plaintiff since what one may perhaps describe as the Moonglades incident, and relations had not been helped either by the Plaintiff's letter of 20^th October, 2000, or by the correspondence with solicitors which had followed.  He had thought it best to ignore the Plaintiff.

69.      In doing the work, the noisiest part he thought would be nailing some timbers into place possibly in July.  He had taken 3 weeks off at the start of the job, and then worked for his employers for a fortnight, during which time he would come back and do some work at perhaps 5 p.m.  He had been helped, most of the time, he said, by Miss Le Couteur's father; and it was plain from Miss Le Couteur's evidence that although she was unable to do heavy work she did her best to help (v infra).

70.      He had not worked before 8 a.m. and had kept the noisier jobs until later, and would, if he worked after 6.30 p. m. not undertake anything noisy after that time.

71.      The evidence of Mrs Garvin, Mrs Anderson and Deputy Le Main was put to him.  His reply was that he believed they were lying to the Court, and, what was more, in the case of Deputy Le Main doing so deliberately for political ends, apart from his friendship with the Plaintiff.  Noise, he said, was simply a matter of degree.

72.      Questioned as to his hours of work, he claimed that he was working normal hours and that it was not physically possible to work extra hours.  He agreed he had wished to complete the work as fast as possible as he had paid for the scaffold for 12 weeks. 

73.      He further agreed that he worked on Saturdays and a couple of hours in the evenings but that any work he had done on Sundays were normal everyday jobs, sometimes of a domestic nature.

74.      Any work done after 6.30 p.m. was perhaps by measuring or listing for the following day.  There was no construction work as such.

75.      Mrs O Le Gac the Defendant's mother simply confirmed her son's evidence.  She did not like the Plaintiff who had been quite nasty to her when she moved in.  She too tried to ignore the Plaintiff so that she would go away.  As to the noise her son made, there was a certain amount, but it was no more than a sewing machine might have made.  He was after all working alone, apart from help from Mr Le Couteur, (the father of Miss Couteur).

76.      She was in the habit, being recently widowed, of eating with her son at about 7 p.m.; and was adamant that, so far as she was aware, work did not continue after supper which would end at 8 or 8.30 p.m.

77.      Miss L Le Couteur, the Defendant's partner had been with the Defendant  at Rowanne for some 7 years.  She did not know the Plaintiff well, but only as a neighbour.  She thought that she had never spoken to her.

78.      She confirmed that the Defendant had taken 3 weeks off at the start, and that she had done so as well to give a hand.  In August, she had started work early to be there in the afternoons.  She confirmed the Defendant's evidence that he would be working until perhaps 6.30 p.m., Saturdays included, and that he would not start heavy machinery too early.

79.      She confirmed that she had spoken to Mr Le Main, but it had, it would seem, chiefly been in relation to a programme on C.T.V.

80.      She too was adamant that the work was not noisy, and thought that their levels of consideration were appropriate.  It is fair to say that she disagreed strongly with the evidence of Mrs Garvin and Mrs Anderson.

81.      Last Mrs Griffiths, who lives further up the lane was heard.  Unlike many of her neighbours, she knew the Plaintiff as a neighbour and spoke amicably with her, even though her husband did not.  She was supportive of the Plaintiff with regard to the parking problems.  She had, perhaps not surprisingly found the Plaintiff very wound up about the building works which affected her.  In her view she should have been resting indoors instead of worrying about builders.

82.      She had heard some noise up until the early evening.  It did not bother her nor mar her enjoyment of her garden.  We should add that Mrs J.I. Henty, another neighbour (who had been given notice of the works) felt the same.  It did not she said bother her much.

83.      Now although the parties were not speaking during the summer, there was quite a lot of action taking place.  First, it is clear that fairly early on the Plaintiff went to Planning and Environment to complain.

84.      As a result, on 12^th June, Mr Townsend, the Principal Planner wrote to Mr Gallaher who had drawn up the Defendant's plans in the following terms:

"It has been brought to my attention that building work is now in progress, but that the contractors on site have constructed scaffolding on adjoining property and are parking vehicles in the narrow private road outside the boundary of the site.  Each of these issues is, I understand, causing concern and worry to adjoining occupiers in addition to the inconvenience of having the driveway blocked.

I have been asked to draw this to your attention, and ask that in implementing this Planning Permission that appropriate levels of consideration are shown to the owners and users of adjoining property.

I would be grateful therefore if you could pass this on to your clients."

85.      Mr Gallaher, quite properly, passed the letter on.  The Defendant merely thought that Planning and Environment was simply passing on exaggerated information, as he felt that the Plaintiff would have said anything to stop any works going on.  He added that he had had a lot on his mind.

86.      Miss Le Couteur said that on receipt of the letter, she could do nothing about the scaffolding but that she had rung the Citizens Advice Bureau who were unable to give any very helpful advice and suggested she see a lawyer.  She added that she knew the scaffolding was not on (as against over); and that in any case the roof had come off and the scaffolding had to remain up.

87.      Although she knew, at about this time, that the Plaintiff was ill, neither she nor the Defendant thought fit to call on her.  It is clear that the Plaintiff then consulted solicitors because on 20^th July, 2001, Mr Fielding wrote to the Defendant as follows:

"I am representing Mrs Cornick in relation to the prejudice which she is suffering, chiefly as a result of the works which you are currently undertaking at your property.  I have attended on site where I have observed a scaffolding structure erected upon your property which is very large and which clearly and substantially encroaches over my client's property in a number of places.  I am instructed that you erected this scaffolding on or about 21^st May this year without my client's permission.

The works that you are carrying out accordingly unlawfully encroach on my client's property and cause my client prejudice in a number of respects.

Firstly, my client is currently marketing her property for sale, but the size and extent of your scaffolding have put off at least one set of prospective purchasers and very possibly more.

Secondly, there is the undoubted fact that you are not entitled to encroach upon my client's property without her express permission, which you have wilfully declined to seek.

Thirdly, I am instructed that works at the property habitually continue late into the evening, and all day on Saturday and all day on Sunday.  While you are entitled to reasonable use of your own property, there are limits beyond which you are not lawfully entitled to go without unreasonably interfering with my client's lawful enjoyment of her own property.

My instructions in this matter are as follows.

My client requires you to take down your scaffolding within ten days after the date of this letter.  I am instructed that it has been erected for some two months which should have been sufficient time for you to carry out whatever works you are undertaking if those works were carried out promptly, and in any event the scaffolding took less than one week to erect.  If you are not willing to take the scaffolding down within the period of ten days after the date of this letter, then I have instructions to issue legal proceedings against you without further notice forcing you immediately to withdraw all those elements of your scaffolding which encroach on my client's property.  Those legal proceedings will also contain a claim for damages, and a further claim that you limit your hours of work at the property as follows:-

(a)       that you shall not carry out any work at the property on a Sunday;

(b)      that you shall not carry out any work at the property on any other day at an unreasonable hour."

88.      Again no approach was made to the Plaintiff nor at that stage did the Defendant consult a lawyer, though Miss Le Couteur did start to make enquiries about air space.  Instead the Defendant composed and Miss Le Couteur typed a reply marked 27^th June but agreed in fact to be 27^th July, as follows:

"The scaffolding that has been erected on my property is essential for the nature of building work being undertaken by myself and permission by your client was not obtained because no scaffolding is erected on her property.  Your client has been aware since last summer that a large building project would be taking place on my property and on previous occasions when I have given notification of any work to be carried out she has objected immediately without giving any consideration to the matter.

All work being carried out has not commenced or ended at an unreasonable hour and I have endeavoured to keep any disturbance to a minimum in consideration for my neighbours.  It is vital that work is carried out on the weekend so the project may be completed at the earliest opportunity, which I am sure you will agree is beneficial to your client.  Furthermore, your client is in no position to complain about noise at unreasonable hours.  On the morning that we received your letter she was seen dragging a shovel along her patio and banging it against the adjoining garden wall between our two properties from 5.45 am for no apparent reason.

There is no possibility of the scaffolding being removed at present and it is completely unreasonable to expect a project of the size that I am undertaking to be complete at the end of two months.  I can assure you that as soon as I am in a position for the scaffolding to be removed it will be dismantled immediately.  If your client wishes to proceed in preventing work being carried out on a Sunday this will only prolong the project, causing the scaffolding to remain for a longer period.  Also the harassment your client is giving to every delivery made to my property is only prolonging the project and she has no right to obstruct material being delivered to my property.

I have contacted the scaffolding contractors and notified them of your client's objections.  I am not responsible for how the scaffolding has been erected and the contractors were given clear instructions prior to commencing work.

With regard to the complaint made to Planning and Environment no action was taken by them other than to forward a copy of the letter to me for my information.  I have subsequently spoken to them and they have confirmed that complaints of that nature are not their concern.  At no time has your client experienced any vehicle obstruction to her property without prior written notification.

I am not prepared to discuss the parking situation that your client persists in wrongly accusing me of and I enclose my previous correspondence to Advocate N S H Benest.

As I have mentioned previously I shall endeavour to complete the remaining work as speedily as possible, whilst keeping any disturbance to a minimal, enabling the scaffolding to be removed possibly at the end of next month if all goes well.

I do however wish to advise you that if your client proceeds with any legal action that will cause delays and additional costs to me I will be forced to take a similar action against your client."

89.      It was after this, that the Defendant asked Mr Fitzpatrick to remove, or cut the overhanging beams which the latter (v. supra) refused to do.  Otherwise the Defendant though conceding that the letter gave the impression, wrongly, that he was carrying out work on Sundays, neither took advice nor approached the Plaintiff, but carried on, as it seemed to the Court, much as he had before.

90.      By this time it is apparent that the Plaintiff was becoming distraught.  On 3^rd August she wrote to several States Members including Mr Le Main.  It is noticeable that her handwriting had deteriorated as compared to the previous year.  The Plaintiff clearly reported to Planning and Environment, her complaint that work was continuing up to 10.p.m. but owing to the conditions of the consent there was, in any event, nothing that the committee could do.

91.      On the 10^th August, 2001, the Plaintiff's lawyers sought an injunction seeking the removal of the scaffolding within 10 days.  With the roof not watertight, the learned Bailiff refused the injunction, but made the following order, the Plaintiff's lawyer reserving her rights in damages:-

a)     That the scaffolding structure should come down by the end of August, so that no part thereof was visible from the Plaintiff's property;

b)    That the Defendant should work on week days only between 8.00 am and 6 p.m.

c)     That the Defendant  should work on a Saturdy6 only between 8.00 am and 5 pm; and

d)     That the Defendant should not work at all at Rowanne or Moonglades on a Sunday.

The Plaintiff's rights with regard to a claim for damages were strictly reserved before the Learned Bailiff."

92.      Even after the injunction which the Defendant and Miss Le Couteur told the Court they took seriously, although conditions improved the Plaintiff's complaints continued.  On 24^th August, she wrote to Mr Bruce at Environmental Health to say that she was "absolutely demented".  On the same day she called at that office, and the note of the lady "Jill" who saw her noted that she had come in in severe distress.  "Jill" also noted that "she said her health was bad (looked likely to me)".

93.      By co-incidence at the time the Plaintiff was in his office, Mr S smith, the Environmental Health officer visited the site and saw the Defendant.  He wrote to her on the 28^th August, paras 4 and 5 reading:-

One aspect to which I may be able to consider action, is whether the ongoing work is being undertaken in a manner which is best able to reduce noise emission.  I visited the premises, co-incidentally at the time you were visiting this office, and discussed the work with the owner, Mr Le Gac, but I have to advise that on the evidence I found I have been unable to identify any aspects which currently I consider are not being undertaken with best practice.

If you are able to provide me with further information relating to specific aspects of the work which are causing you distress, then please do not hesitate to contact me at this office.  In the meantime I regret there is no further action which I can take in this matter at the current time".

And after a further letter from the Plaintiff wrote again on 5^th September emphasising that in his view he had no evidence of the activities which have been causing her concern.

94.      Mr Smith gave evidence (before the Viscount) and stated that when he arrived the Defendant was "actually working up the scaffold laying roof tiles to a valley and ..... was actually cutting a tile with the angle grinder".  He thought the Defendant was acting reasonably.  The nature of construction work is to be noisy; the hours of work had been fixed by the Bailiff; and that a member of the public might find the work very audible, would not necessarily mean that his Department would consider it to be a nuisance.

95.      Finally, dealing with the evidence, the Court noted that right to the end despite the proximity of their properties and the work about which the complaint was made, the parties had not spoken to each other.

96.      The Plaintiff, it is clear, despite her letter in October 2000 neither called nor telephoned the Defendant.  Equally, despite the erection of the scaffold nearly on the boundary line, the warning signal in the letter of the 12^th June, Mr Fielding's letter of the 20^th July and the injunction proceedings of the 10^th August, the Defendant never got in touch with the Plaintiff.

97.      Instead he continued with the work, next to an elderly lady who he knew to be highly strung who he sought to ignore.  He did not, he said take her seriously enough, had a lot of pressure to do the work which he was doing out of savings and had thought the Plaintiff  was putting him to expense rather than being concerned with her own health.

98.      Miss Le Couteur made the point, quite fairly, that the Plaintiff could have come to see them but reiterated, on several occasions that the Plaintiff had become unapproachable, that it had put one off, and finally that neither she nor the Defendant ever went to see her because they thought it would be no good.

99.      This then is the outline of the facts in this unhappy case, and the Court should say that it has set them out in some detail in order that it may be seen how our conclusion has been reached.

100.   Counsel referred the Court to the law, first on trespass for which the Plaintiff requested aggravated damages, and second on nuisance.  Counsel for the Plaintiff set out a series of propositions regarding trespass which may be summarised as follows:

101.   First, that if the Plaintiff is a bad neighbour, this offers no defence per se.  This was accepted by Mr Livingstone.

102.   Second, that for the purposes of this hearing the Plaintiff owns everything above her property.  This proposition also was quite properly accepted.

103.   Third that mistake is no defence.

104.   Fourth that damage can be recovered for trespass even where no actual loss has been sustained.

105.   Fifth per Kelsen in any case where an applicant is disentitled to an injunction (as here) the Court may award damages.

106.   Sixth, per Scott J in Anchor Brewhouse: that there is no balancing of rights v. the passage at p.94:-

"What is complained of in the present case is infringement of air space by a structure positioned upon a neighbour's land.  The defendant has erected tower cranes on its land.  Attached to each tower crane is a boom which swings over the plaintiff's land.  The booms invade the air space over the plaintiff's land.  Each boom is part of the structure on the defendant's land.  The tort of trespass represents an interference with possession or with the right to possession.  A landowner is entitled, as an attribute of his ownership of the land, to place structures on his land and thereby to reduce into actual possession the space above his land.  If an adjoining owner places a structure on his (the adjoining owner's) land that overhangs his neighbour's land, he thereby takes into his possession air space to which his neighbour is entitled.  That, in my judgment, is trespass.  It does not depend upon any balancing of rights.

The difficulties posed by overlying 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 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 proprietary rights enjoyed by landowners ought to be clear.  It may be that, where aircraft or overlying missiles are concerned, certainly cannot be achieved.  I do not wish to dissent at all from Griffiths J's approach to that problem in the Bernstein case.  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.  The conclusion is consistent with the judgment of McNair J in Kelsen, with the concession made in Woollerton and    son -v- Costain, with the decision of Cambell J in the Australian case, and also with the dictum of Griffiths at page 486 in the Bernstein case.  If that is right, then the cranes oversailing the Plaintiff's land commit trespass.

In my view, the defendant is committing trespass by its use of its oversailing cranes.  This is not a case, in my judgment, in which there is any issue on liability which must await trial.  It is not a case, therefore, in which balance of convenience as to what should be done at this interlocutory stage is relevant.  The plaintiffs are, in my judgment, entitled now to the injunctive relief to which, in accordance with the view of the law that I take, they would be entitled at trial.".

107.   Seventh, that per Jaggard and Sawyer (Bingham M.R.) cities at page 199 Brightman J in deciding the Wrotham Park case as saying that:

"A just substitute for a mandatory injunction would be such a sum of money as might be reasonably here demanded by the Plaintiffs from the developer as a quid per quo for the relaxing the covenant"

He further cited the passage at p.202:

"The judge was not willing to order the defendants to undo the continuing effects of that breach.  He had therefore to assess the damages necessary to compensate the plaintiffs for this continuing invasion of their  right.  He paid attention to the profits earned by the defendants, as it seems to me, not in order to strip the defendants of their unjust gains, but because of the obvious relationship between the profits earned by the defendants and the sum which the defendants would reasonably have been willing to pay to secure release from the covenant.  I am reassured to find that this is the view taken of Wrotham Park by Megarry V-C I Tito -v- Waddell (No2) [1977] 3 All ER   129 at 319 [1977] Ch 106 at 335, when he said:

'Brightman J resolved the difficult question of the appropriate quantum of damages by holding that the plaintiffs should recover five per cent of the defendants' expected profit from their venture.  In Racewell -v- Appleby, Graham J applied the same principle where the right in question was not a consent under a restrictive covenant, but an easement of way.  I find great difficulty in seeing how these cases help counsel for the plaintiffs.  If the plaintiff has the right to prevent some act being done without his consent, and the defendant does the act without seeking that consent, the plaintiff has suffered a loss in that the defendant has taken without paying for it something for which the plaintiff could have required payment, namely, the right to the act.  The court therefore makes the defendant pay what he ought to have paid   the plaintiff, for that is what the plaintiff has lost.  The basis of computation is not, it will be observed, in any way directly related to wasted expenditure or other loss that the defendant is escaping by reason of an injunction being refused:  it is the loss that the plaintiff has suffered by the defendant not having observed the obligation to obtain the plaintiff's consent.  Where the obligation is contractual, that loss is the loss caused to the plaintiff by the breach of contract'." 

I can see no reason why a Judge should not assess damages on the Wrotham Park basis when he declines to prevent commission of a future wrong.

108.   So far as trespass was concerned, the Plaintiff called K Clyde-Smith who stated that the size and proximity of the scaffold and the encroachment of air space, might reduce the rental value of the property from £300 to £260 per week it was at its full height and by £20 per week thereafter.

109.   Mr R Trower, by letter dated 18^th September, 2003, agreed that a reduction of rental of £40 per week for the scaffolding alone would be reasonable.  Mr Livingston in answer to this contended that any award should be a small sum for an innocent trespass, but did not, as we think he could not, dispute that there had indeed been a trespass.

110.   As to nuisance, although the facts are much in dispute, the law on which the Court must decide is clear.  Mr Fielding put it to the Court that the leading case here was Du Feu -v- Granite Products at p2447, 2448 and 2449:

"The two basic principles underlying all actions based o the tort of nuisance were set out in Shaw widow Key -v- Regal (1962) JJ 189 at p.192 -

"(1) The occupier of land is entitled to the quiet and unimpeded enjoyment of that land.

(2) The owner of land is entitled to do as he pleases with that land."

It is obvious that in many cases, as has happened here, these two principles can give rise to a direct conflict of interest and accordingly, both are subject to some limitation.  The limitation to which the first is subject is that the quiet and freedom from impediment must be related to the needs of the average person in the particular neighbourhood and furthermore that those needs must be average needs and subordinated at times to the particular needs of others.  The limitation to which the second principle is subject is that the occupier of land can do with that land only that which is lawful, a great limitation at the present day, and, within that which is lawful, that which will not give rise to emanations which might unreasonably interfere with his neighbours.

Enlarging on the limitations referred to in that passage, we set out the following relevant rules based on the authorities cited to us, and, in particular, chapter 18 entitled "Nuisance", of the edition of Clerk and Lindsell on Torts already referred to.

1. A nuisance of the third type, to be actionable, does not require proof of injury to health or of damage to property; but it must be such as to be a real interference with the comfort or convenience of living according to the standards of the average man.  Thus the discomfort must be substantial not merely with reference to the Plaintiff, but of such a degree that it would be substantial to any person occupying the Plaintiff's premises, irrespective of his position in life, age or state of health.  As Knight Bruce V.-C. said in Walter -v- Self (1851) 4 De G & Sm. 315 at p.322, the alleged nuisance must be -   "an inconvenience materially interfering with the ordinary comfort physically of human existence, not merely according to elegant or dainty modes and habits of living, but according to plain and sober and simple notions among the English people."

2. In organised society everyone must put up with a certain amount of discomfort and annoyance from the legitimate activities of his neighbours.  The homely phrases "give and take" and "live and let live" are relevant.  In striking a just balance between the right of a defendant to use his property for his own lawful enjoyment and the right of the plaintiff to the undisturbed enjoyment of his property, the following extract from paragraph 162 of Volume 28 of Halsbury's Laws of England (Third Edition) is valuable:

"An act which in some circumstances is innocent may in others become actionable as a nuisance.

Whether such an act does constitute a nuisance must be determined not merely by an abstract consideration of the act itself, but by reference to all the circumstances of the case, including, for example, the time of the commission of the act complained of; the place of its commission, the manner of committing it,  that is, whether it is done wantonly or in the reasonable exercise of rights; and the effect of its commission, that is, whether those effects are transitory or permanent, occasional or continuous; so that the question of nuisance or no nuisance is one of fact."

In particular, the law takes into consideration both the object and duration of that which is alleged to constitute the nuisance.  Thus, a mere temporary interference with comfort or convenience, as, for example, the demolition and rebuilding of a house, may well not be actionable, because the temporary or permanent character of the act complained of is an element to be considered in deciding whether or not the average man would consider it as a nuisance; but a temporary interference which is substantial will be an actionable nuisance.

3. In considering the standard of comfort or convenience of living of the average man, the character of the neighbourhood must be taken into account.  As Veale, J., said in Halsey -v- Esso Petroleum Co. Ltd (1961) 1 W.L.R.683, at page 692 -

"it is the standard of the ordinary man, and the ordinary man, who may well like peace and quiet, will not complain, for instance, of the noise of traffic if he chooses to live on a main street in an urban centre, nor of the reasonable noises of industry, if he chooses to live alongside a factory."

But that does not mean that a person who lives in, for example, a noisy neighbourhood can never complain of any additional noise; he can do so if the fresh noise is by itself so substantial as to be a nuisance."

111.   In his submission there was, on the facts a nuisance, which though temporary was substantial.

112.   As to the damages he sought, he relied for this also on the evidence of Mr. Clyde-Smith and Mr Trower.  Mr Clyde-Smith thought that constant hammering and drilling so close, as alleged by the Plaintiff would have a bigger impact than the scaffold itself and could well reduce the rent by at least 50% of its market value (i.e. £150); a view more than endorsed by Mr Trower who thought that any building noise emanating from the property might reduce it by this amount.

113.   An answer, Mr Livingstone submitted, first, that there were two distinct camps as to noise, second that there had to be a real interference with comfort or convenience of living.  For this he cited the passage at Clerk & Lindsell on Torts 18-10:

"Standard of comfort.  A nuisance of this kind, to be actionable, must be such as to be a real interference with the comfort or convenience of living according to the standards of the average man.  An interference which alone causes harm to something of abnormal sensitiveness does not of itself constitute a nuisance.  A man cannot increase the liabilities of his neighbour by applying his own property to special uses, whether for business or for pleasure.  But once the nuisance is established, the remedies by way of damages or an injunction will extend to delicate and sensitive operations such as the growing of orchids.  When it is said that a householder is entitled to have the air in his house untainted and unpolluted by any acts of his neighbour, that means that he is entitled to have "not necessarily air as fresh, free and pure as at the time of building the plaintiff's house the atmosphere then was, but air not rendered to an important degree less compatible, or at least no rendered incompatible, with the physical comfort of human existence.  Moreover, the discomfort must be substantial not merely with reference to the plaintiff; but it must be of such a degree that it would be substantial to any person occupying the plaintiff's premises, irrespective of his position in life, age, or state of health; it must be "an inconvenience materially interfering with the ordinary comfort physically of human existence, not merely according to elegant or dainty modes and habits of living, but according to plain and sober and simple notions among the English people."

And 18-12 and 18-13 as follows:

"Demolition and rebuilding.  Noise and dust caused by demolition and rebuilding will not be actionable if the operations are reasonably carried on, and all reasonable and proper steps are taken to ensure that no undue inconvenience is caused to neighbours.  In considering what is reasonable, account must be taken of modern methods.  The damages awarded will only be in respect of losses caused by the acts of the defendants which are in excess of what is permissible.

"A man who pulls down his house for the purpose of building a new one do doubt causes considerable inconvenience to his next-door neighbours during the process of demolition; but he is not responsible as for a nuisance if he uses all reasonable skill and care to avoid annoyance to his neighbour by the works of demolition.  Nor is he liable to an action even though the noise and dust and the consequent annoyance be such as would constitute a nuisance if the same, instead of being created for the purpose of demolition of the house, had been created in sheer wantonness, or in the execution of works for a purpose involving a permanent continuance of the dust and noise.  For the law, in judging what constitutes a nuisance, does take into consideration both the object and the duration of that which is said to constitute the nuisance."

18.13  Temporary interference.  The duration of an interference is an element in assessing its actionability, together with the character and quality of that interference, but it is not a decisive factor, for a temporary interference which is substantial will be an actionable nuisance.

Though the interference may be actionable even if of temporary or very short duration, it is often said that nuisance requires "a state of affairs".  This does not mean that the actual damage must be of continuing character.   As has been said, "Most nuisances do arise from a long continued condition; and may isolated happenings do not constitute a nuisance.  It is, however, clear from the authorities that an isolated happening by itself can create an actionable nuisance."  Provided that the defendant's property was in a state which constituted a potential hazard to his neighbour, the neighbour has a cause of action on the first occasion of damage."

114.   In his view, the Plaintiff was showing undue sensitivity due to the state of her health, and given the conflict of evidence there was nothing before the Court which could in the circumstances allow it to find that the Plaintiff had any action for nuisance.

115.   The Court having taken these submissions into account and having heard the evidence has come to the following conclusions.

116.   So far as the trespass is concerned, it is clear that a trespass was committed; and although, if it had been discussed and dealt with at the outset before it occurred, the Defendant might well have found it worth his while to pay more, the Court finds that the approach of Mr Clyde-smith and Mr Trower is, in the circumstances reasonable, and under this head awards damages of £500.

117.   So far as nuisance is concerned the position is more complicated.  The scaffolding was immediately to the South and (apart from the overhanging beams) virtually on the boundary line.  With its roof and the 'polythene' it was, at some 40 ft, of an impressive bulk.  Scaffolding of this size was necessary for the work contemplated by the Defendant.

118.   It is clear from the precedents that an owner is entitled to do what he wishes with his property but on condition of not unreasonably causing his neighbour a real inconvenience as to comfort, (Du Feu - v - Grantine Products Limited).

119.   It seems to the Court that it may still be the case, that even where planning permission has been granted, the work, ipso facto, comes into this category.  In other words, although the house when the work had been completed would cause no problem, the incidence of works necessary for it might nonetheless cross the boundary of what is acceptable; so that, in such a case consideration would have to be given to revising either the plans or the method of construction.

120.   It is, of course, a matter of degree in each case.  In this case the Court does not take the view that the scaffolding and the roof caused, despite its size and proximity, a nuisance of itself, even though it is clear that it caused a trespass over the property of the Plaintiff.

121.   It was however, inevitably very intrusive for the Plaintiff, and it should have been clear to the Defendant that it behoved him to behave with care and consideration to his neighbour to the North.

122.   This brings the Court to the issues of noise and unreasonable working hours claimed by the Plaintiff.  First, we find that the Plaintiff is unduly sensitive, and not to put too fine a point on it opinionated; and was, besides, just recovering from a collapsed lung requiring 3 weeks in Hospital, after, clearly, an emergency.

123.   We should add that there is no doubt in our view but that the Plaintiff was distressed, and to a considerable degree, by the work but the Court finds that her distress was exacerbated by her temperament and health.  She was, however, quite open about her distress, and when instances of bad behaviour e.g. banging the shovel, were put to her had no hesitation in admitting them, and the Court finds her to be a witness of truth.  What the court has to decide, however, is not whether she was distressed which she was but whether such distress would have been caused to a reasonable person, not in her state of health.

124.   Second no other neighbour complained of noise; and though Mrs Griffiths further up the land heard hammering it did not bother her.

125.   Against her evidence, the Defendant, his mother, and his partner were adamant that they did not start heavy machinery too early in the day, and did no heavy work after 6.30 p.m. or on a Sunday

126.   Had the Court been faced only with this evidence, it is clear that the claim in nuisance could not be made out.  The Court, however, heard evidence from several people who visited the house, viz Mrs Lee, Mrs Garvin, Mrs Anderson and Deputy le Main.

127.   Although we accept that they are friends of the Plaintiff, and although it is possible as suggested by the Defence that they may have exaggerated and been over sensitive, nonetheless, the Court accepts that they felt very strongly about the work, that each individually found it intolerable, and that as found by two of them it continued into the evening.  The Court found them to be reliable and honest witnesses and rejects the Defendant's allegations that they were lying.

128.   Further their evidence was supported by Deputy Le Main, whose evidence on this point was not challenged.  The Court accepts his evidence also with regard to the noise. 

129.   It is clear also that the Defendant was under time pressure.  He was undertaking a considerable amount of work and had initially only hired the scaffold for 12 weeks.

130.   In addition the evidence of Mr Fitzpatrick of Brocken Fitzpatrick made it quite clear that although he thought the scaffolding safe enough for the summer he would have had to buttress it - partly by a buttress in the Plaintiff's garden or take it down,  this on safety grounds, and moreover by the end of September.

131.   There was thus every reason for the Defendant to press on while the summer and the light lasted, and the Court is in no doubt but that on occasions, he did work later than he admitted to the Court.

132.   It is put on his behalf that the Plaintiff could have complained to him, instead of to everybody else who she thought might take notice of her.  However, given that the Defendant did not speak to her, and had deliberately it would seem kept from her the scale and timing of the works, and was the person making the noise complained of, it was in the view of the Court rather for him to at least try to see the Plaintiff, explain to her what he was doing and generally show her some consideration.  Instead of this he clearly dug his heels in and went on regardless, in the hope no doubt that if he ignored her, the Plaintiff would do nothing.

133.   This attitude continued even after the receipt of Mr Fielding's letter of the 20^th July as is shown by his reply of the 27^th July and his attitude only changed after the Plaintiff sought to obtain an injunction on 10^th August.

134.   Although the nuisance was perhaps not as severe as is claimed by the Plaintiff, nonetheless, given the proximity of the works, the evidence which we accept of the Plaintiff's witnesses, the general behaviour of the Defendant and the overbearing nature of the scaffolding and roof, the actions of the Defendant did cross the border line, and the Plaintiff is entitled to damages for nuisance as well as for trespass.

135.   The Plaintiff has suggested that the Court use, as a basis, the likely loss of rental if it were sought to let the house.

136.   This may be one way to approach the assessment of damages, but the Court has a duty to exercise their own judgment on the evidence before them.  In particular it would in the view of the Court be wrong that damages for nuisance should vary with the rental value of the property occupied by the complainant, rather than be assessed in accordance with their view of the distress suffered.

137.   Such assessments are always difficult, but on the evidence which the Court has heard the Court considers that a sum of £1,500 is sufficient and proper to meet the claim of the Plaintiff and to compensate her for the distress and inconvenience caused to her by the Defendant; and the Court so orders. 

138.   Damages therefore are assessed at £500 for the trespass and £1,500 for the action for nuisance, a total of £2,000.

Authorities

Du Feu -v- Granite Products Limited (1973) JJ 2441.

Mitchell -v- Dido Investments Limited [1987-88] JLR 293.

Kelsen -v- Imperial Tobacco Company Limited [1957] 2 All ER 343.

Wollerton & Wilson Limited -v- Richard Costain Limited [1970] 1 All ER 483.

Anchor Brewhouse Development Limited -v- Berkeley House (Docklands Development) Limited (1987) 38 Building L.R. 82.

Jaggard -v- Sawyer [1995] 2 All ER 189.

Clerk and Lindsell on Torts (17^th Edition): paras: 3.02-3.05; 17.03-17.08; 17.32-17.67; paras 18.01-18.24.

Civil Aviation Act 1982 (Jersey) Order 1990: s.76(1).