Laiqat v Majid and Others
| Jurisdiction | England & Wales |
| Judge | The Honourable Mr Justice Silber |
| Judgment Date | 22 June 2005 |
| Neutral Citation | [2005] EWHC 1305 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: LS0153A |
| Date | 22 June 2005 |
[2005] EWHC 1305 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
LLEDS DISTRICT REGISTRY
The Honourable Mr Justice Silber
Case No: LS0153A
Mr Ian Pennock (instructed by Stachiw Bashir Green of Shipley)
for the Claimant
The Third Defendant appeared in person and he also represented the other Defendants, who were not present at the hearing
Hearing dates: 27 May 2005
Introduction
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.
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.
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
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.
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.
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.
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).
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
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.
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.
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.
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.
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.
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
The question whether an invasion of air space amounts to a trespass has been the subject of judicial consideration on various occasions in...
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