Forsyth-Grant v Allen
| Jurisdiction | England & Wales |
| Judge | Mr Justice Patten,Lord Justice Toulson,Lord Justice Mummery |
| Judgment Date | 08 April 2008 |
| Neutral Citation | [2008] EWCA Civ 505 |
| Docket Number | Case No: B2/2007/0834(B) B2/2007/0834 |
| Court | Court of Appeal (Civil Division) |
| Date | 08 April 2008 |
[2008] EWCA Civ 505
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM SOUTHAMPTON COUNTY COURT
(HIS HONOUR JUDGE HARVEY-CLARK QC)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Mummery
Lord Justice Toulson and
Mr Justice Patten
Case No: B2/2007/0834(B)
B2/2007/0834(Z)
B2/2007/0834
Mr N Ley (instructed by Messrs Wilks Price Hounslow) appeared on behalf of the Appellant.
Mr J Burns (instructed by Careless & Kemp) appeared on behalf of the Respondent.
This is an appeal by the claimant Mrs Marcia Forsyth-Grant against the judgment of HHJ Harvey-Clark QC, given in the Southampton County Court on 30 March 2007 in an action for trespass and nuisance, arising out of the construction by the defendants of a pair of semi-detached houses on land adjoining the Hotel Picardie at Ventnor on the Isle of Wight, which is owned by the claimant.
The judge awarded the claimant damages of £5 for trespass and £1,848.63 in respect of the claim for nuisance, which concerned the infringement of rights of light enjoyed by the hotel. He rejected a claim for an account of profits. In her grounds of appeal the claimant challenges the judge's refusal to order an account of profits and, if successful on the first ground of appeal, also challenges the judge's calculation of the profits made by the defendants as a result of the infringement of the claimant's rights of light. The third ground of appeal challenges the jurisdiction of the judge to grant an injunction restraining the claimant from removing some steps, partly constructed on her land during the course of the development.
Rimer LJ granted permission to appeal on these grounds but refused it on two other grounds, one of which is no longer pursued. The remaining ground relates to the judge's order for costs. The judge ordered the claimant to bear the greater part of the costs of the action on an indemnity basis. This is said in the Notice of Appeal to be Wednesbury unreasonable. The claimant has renewed her application in this court for permission to appeal on this ground but, like Rimer LJ, I am not satisfied that the judge erred in principle in making the order for costs which he did, and I would refuse permission to appeal on that ground.
Before I come to the detail of the grounds of appeal where permission has been granted and in order to explain the issues they raise, I need to summarise the history and nature of the dispute and the way in which the judge dealt with the issues in the litigation.
The judge found that, when the claimant purchased the hotel in 1998, the area of land now developed by the defendants which lies to the west of the hotel was an open site which was used by the Hotel Picardie as a car park in return for the payment of a nominal rent. It had previously been the site of another hotel —the Montrose Hotel —which was demolished in 1961 and, for the next forty years, it remained a cleared site. In 2001 the first defendant, Mr Lawrence Allen, purchased the site with a view to obtaining planning permission for the construction on it of a family house. Ownership of the site was subsequently transferred, probably for tax reasons, to his son the second defendant, but the first defendant remained in charge of the project and was treated in the proceedings as the effective defendant.
In 2002 or 2003, Mr Allen obtained planning permission for the erection on the site of two semi-detached houses which were built in 200They have been named Sunrise and Sunset —Sunrise being the house closest to the claimant's hotel. The judge described the overall building in his judgment as an attractive contemporary design with a pitched roof, balconies, decking and open plan rooms all overlooking the sea.
The claimant, however, was bitterly opposed to the development and, on the judge's findings, did everything she could to prevent it. This included maintaining that her boundary with the development site extended some six feet from the hotel. In 2003 she wrote to the Land Registry seeking its confirmation of this. The Land Registry replied on 14 January 2004, declining to rectify the register so as to show the boundary in this place. The views of the Land Registry were that her title did not include a six foot strip to the west of the hotel and was effectively on the line of the western wall of the building. At the trial the experts were agreed that the boundary line should follow the line of the eaves of the roof of the hotel, subject to making an allowance for the fact that the west wall of the hotel had bowed out towards the defendant's land. This meant that the boundary line was no more than eighteen inches to two feet from the foot of the western wall of the hotel.
In the Particulars of Claim the claimant had pleaded that she owned a strip four feet three inches wide, immediately to the west of the wall of the hotel but, in the light of the expert's agreement, this contention was of course abandoned.
Apart from the boundary issue, the other matter of concern was the effect which the development would have on rights of light acquired by prescription in favour of the hotel. This was first raised not by the claimant but by Mr Michael Ney, a building surveyor specialising in rights of light who had been instructed by the architect supervising the development. He was of the opinion that it could have an adverse effect on any rights of light enjoyed by the hotel. On his advice the plans were amended to set back the three-storey part of the new building, but even then Mr Ney remained concerned and, in September 2002, he therefore wrote to the claimant offering, on behalf of the defendants, to pay reasonable compensation for any loss of light. He asked the claimant to contact him and explained that in order to calculate the loss of light that might be involved and the amount of any compensation, he needed to visit the hotel and to measure the affected rooms. The claimant did not reply to Mr Ney nor to a series of letters written to her throughout 2003. In fact she refused to allow Mr Ney to visit the hotel until ordered to provide access by a district judge in January 2007, following the commencement of the proceedings.
The judge heard expert evidence from Mr Ney and, from Mr Keith Sanger on behalf of the claimant, about whether the infringement of the claimant's rights of light could have been prevented by the construction of a lightwell on the first floor of Sunrise. The experts were agreed that this would have been effective to prevent any infringement, and Mr Ney therefore considered that it was what Sunrise would have had (as he put it) to lose in order to prevent any actionable damage. Mr Allen's evidence was that, had this possibility been raised with him in 2004, he would have incorporated the lightwell into the design of the house. He said, and the judge accepted, that this could have been done by incorporating the lightwell into the open plan kitchen-dining room. His evidence was that it would not have necessitated the loss of a bedroom. The defendant's view was that the incorporation of the lightwell would not have reduced the value of Sunrise.
A surveyor called by the claimant, Mr Anthony Flower, expressed the view that the lightwell might decrease the value of Sunrise by about £2,500 per square metre of the area which it covered. This was 8.46 square metres. This would be a reduction of about £20,000, but the judge rejected his evidence as speculative and unsupported by any valuation evidence such as comparables. He accepted Mr Ney's calculation of the incremental profit which the defendants had gained by being able to build on the area that would have been occupied by the lightwell. In his second report Mr Ney calculated this as £4,855. It was based on figures contained in the fifth witness statement of Mr Allen. The evidence in this witness statement was that Sunrise was worth about £395,000 in 2006, based on an offer in March of that year of £390,000. This valuation was agreed by Mr Flower. Mr Allen estimated that the cost of developing Sunrise, including the cost of the land and interest on loans, was £326,415. On the basis of these figures he calculated that the value of the house as built equated to £3,237 per square metre, compared to a cost of development of £2,675 per square metre. The profit earned by being able to build on the 8.46 square metres was therefore £4,855, ie £3,237 times 8.46 minus £2,675 times 8.46. During the hearing Mr Ney amended his calculations to exclude from the calculation of net profit the cost of the land. This increased the net incremental profit to £6,767. The judge accepted this evidence.
In the action, the claimants sought damages and injunctive relief, both in respect of alleged trespasses and the alleged nuisance caused by the infringement of the rights of light. The alleged acts of trespass were 1) the affixing of the flight of stairs against the west wall of the hotel and on the claimant's land to the west of that wall; 2) the erection of a fence at the western side of the hotel obstructing access to the four-foot three-inch strip claimed by the claimant, and 3) the digging up of pipes and drains within the four-foot three-inch strip. The judge found that the steps built along the boundary were built with the consent of the claimant who accepted at the time that they reinforced the wall of her garden. The judge held that, having agreed to this and having encouraged the defendants to spend time and money constructing the steps, she was now estopped from seeking their removal, so far as they were...
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